
[Federal Register Volume 81, Number 80 (Tuesday, April 26, 2016)]
[Proposed Rules]
[Pages 24525-24536]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-09586]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2013-0561, FRL-9945-57-Region 8]


Promulgation of State Implementation Plan Revisions; 
Infrastructure Requirements for the 2008 Lead, 2008 Ozone, 2010 
NO2, 2010 SO2, and 2012 PM2.5 National 
Ambient Air Quality Standards; Utah

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve elements of State Implementation Plan (SIP) revisions from the 
State of Utah to demonstrate the State meets infrastructure 
requirements of the Clean Air Act (Act or CAA) for the National Ambient 
Air Quality Standards (NAAQS) promulgated for ozone on March 12, 2008, 
lead (Pb) on October 15, 2008, nitrogen dioxide (NO2) on 
January 22, 2010, sulfur dioxide (SO2) on June 2, 2010 and 
fine particulate matter (PM2.5) on December 14, 2012. The 
EPA is also proposing to approve SIP revisions the State submitted 
regarding state boards. Section 110(a) of the CAA requires that each 
state submit a SIP for the implementation, maintenance, and enforcement 
of each NAAQS promulgated by the EPA.

DATES: Written comments must be received on or before May 26, 2016.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2013-0561 at http://www.regulations.gov. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from Regulations.gov. The EPA may publish any 
comment received to its public docket. Do not submit electronically any 
information you consider to be Confidential Business Information (CBI) 
or other information whose disclosure is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. The EPA 
will generally not consider comments or comment contents located 
outside of the primary submission (i.e., on the web, cloud, or other 
file sharing system). For additional submission methods, the full EPA 
public comment policy, information about CBI or multimedia submissions, 
and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Abby Fulton, Air Program, U.S. 
Environmental Protection Agency (EPA), Region 8, Mail Code 8P-AR, 1595 
Wynkoop Street, Denver, Colorado 80202-1129, (303) 312-6563, 
fulton.abby@epa.gov.

SUPPLEMENTARY INFORMATION:

I. General Information

What should I consider as I prepare my comments for the EPA?

    1. Submitting Confidential Business Information (CBI). Do not 
submit CBI to the EPA through http://www.regulations.gov or email. 
Clearly mark the part or all of the information that you claim to be 
CBI. For CBI information on a disk or CD ROM that you mail to the EPA, 
mark the outside of the disk or CD ROM as CBI and then identify 
electronically within the disk or CD ROM the specific information that 
is claimed as CBI. In addition to one complete version of the comment 
that includes information claimed as CBI, a copy of the comment that 
does not contain the information claimed as CBI must be submitted for 
inclusion in the public docket. Information so marked will not be 
disclosed except in accordance with procedures set forth in 40 CFR part 
2.
    2. Tips for preparing your comments. When submitting comments, 
remember to:
     Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register volume, 
date, and page number);
     Follow directions and organize your comments;
     Explain why you agree or disagree;
     Suggest alternatives and substitute language for your 
requested changes;
     Describe any assumptions and provide any technical 
information and/or data that you used;
     If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced;
     Provide specific examples to illustrate your concerns, and 
suggest alternatives;
     Explain your views as clearly as possible, avoiding the 
use of profanity or personal threats; and,
     Make sure to submit your comments by the comment period 
deadline identified.

II. Background

    On March 12, 2008, the EPA promulgated a new NAAQS for ozone,

[[Page 24526]]

revising the levels of the primary and secondary 8-hour ozone standards 
from 0.08 parts per million (ppm) to 0.075 ppm (73 FR 16436, March 27, 
2008). Subsequently, on October 15, 2008, the EPA revised the level of 
the primary and secondary Pb NAAQS from 1.5 micrograms per cubic meter 
([mu]g/m\3\) to 0.15 [mu]g/m\3\ (73 FR 66964, Nov. 12, 2008). On 
January 22, 2010, the EPA promulgated a new 1-hour primary NAAQS for 
NO2 at a level of 100 parts per billion (ppb) while 
retaining the annual standard of 53 ppb. The 2010 NO2 NAAQS 
is expressed as the three-year average of the 98th percentile of the 
annual distribution of daily maximum one-hour average concentrations. 
The secondary NO2 NAAQS remains unchanged at 53 ppb (75 FR 
6474, Feb. 9, 2010). On June 2, 2010, the EPA promulgated a revised 
primary SO2 standard at 75 ppb, based on a three-year 
average of the annual 99th percentile of one-hour daily maximum 
concentrations (75 FR 35520, June 22, 2010). Finally, on December 14, 
2012, the EPA promulgated a revised annual PM2.5 standard by 
lowering the level to 12.0 [mu]g/m\3\ and retaining the 24-hour 
PM2.5 standard at a level of 35 [mu]g/m\3\ (78 FR 3086, Jan. 
15, 2013).
    Under sections 110(a)(1) and (2) of the CAA, states are required to 
submit infrastructure SIPs to ensure their SIPs provide for 
implementation, maintenance and enforcement of the NAAQS. These 
submissions must contain any revisions needed for meeting the 
applicable SIP requirements of section 110(a)(2), or certifications 
that their existing SIPs for PM2.5, ozone, Pb, 
NO2, and SO2 already meet those requirements. The 
EPA highlighted this statutory requirement in an October 2, 2007, 
guidance document entitled ``Guidance on SIP Elements Required Under 
Sections 110(a)(1) and (2) for the 1997 8-hour Ozone and 
PM2.5 National Ambient Air Quality Standards'' (2007 Memo). 
On September 25, 2009, the EPA issued an additional guidance document 
pertaining to the 2006 PM2.5 NAAQS entitled ``Guidance on 
SIP Elements Required Under Sections 110(a)(1) and (2) for the 2006 24-
Hour Fine Particle (PM2.5) National Ambient Air Quality 
Standards (NAAQS)'' (2009 Memo), followed by the October 14, 2011, 
``Guidance on Infrastructure SIP Elements Required Under Sections 
110(a)(1) and (2) for the 2008 Lead (Pb) National Ambient Air Quality 
Standards (NAAQS)'' (2011 Memo). Most recently, the EPA issued 
``Guidance on Infrastructure State Implementation Plan (SIP) Elements 
under Clean Air Act Sections 110(a)(1) and (2)'' on September 13, 2013 
(2013 Memo).

III. What is the scope of this rulemaking?

    The EPA is acting upon the SIP submissions from Utah that address 
the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) 
for the 2008 ozone, 2008 Pb, 2010 NO2, 2010 SO2, 
and 2012 PM2.5 NAAQS. The requirement for states to make a 
SIP submission of this type arises out of CAA section 110(a)(1). 
Pursuant to section 110(a)(1), states must make SIP submissions 
``within three years (or such shorter period as the Administrator may 
prescribe) after the promulgation of a national primary ambient air 
quality standard (or any revision thereof),'' and these SIP submissions 
are to provide for the ``implementation, maintenance, and enforcement'' 
of such NAAQS. The statute directly imposes on states the duty to make 
these SIP submissions, and the requirement to make the submissions is 
not conditioned upon the EPA taking any action other than promulgating 
a new or revised NAAQS. Section 110(a)(2) includes a list of specific 
elements that ``[e]ach such plan'' submission must address.
    The EPA has historically referred to these SIP submissions made for 
the purpose of satisfying the requirements of CAA sections 110(a)(1) 
and 110(a)(2) as ``infrastructure SIP'' submissions. Although the term 
``infrastructure SIP'' does not appear in the CAA, the EPA uses the 
term to distinguish this particular type of SIP submission from 
submissions that are intended to satisfy other SIP requirements under 
the CAA, such as ``nonattainment SIP'' or ``attainment plan SIP'' 
submissions to address the nonattainment planning requirements of part 
D of title I of the CAA; ``regional haze SIP'' submissions required by 
the EPA rule to address the visibility protection requirements of CAA 
section 169A; and nonattainment new source review (NSR) permit program 
submissions to address the permit requirements of CAA, title I, part D.
    Section 110(a)(1) addresses the timing and general requirements for 
infrastructure SIP submissions, and section 110(a)(2) provides more 
details concerning the required contents of these submissions. The list 
of required elements provided in section 110(a)(2) contains a wide 
variety of disparate provisions, some of which pertain to required 
legal authority, some of which pertain to required substantive program 
provisions, and some of which pertain to requirements for both 
authority and substantive program provisions.\1\ The EPA therefore 
believes that while the timing requirement in section 110(a)(1) is 
unambiguous, some of the other statutory provisions are ambiguous. In 
particular, the EPA believes that the list of required elements for 
infrastructure SIP submissions provided in section 110(a)(2) contains 
ambiguities concerning what is required for inclusion in an 
infrastructure SIP submission.
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    \1\ For example: Section 110(a)(2)(E)(i) provides that states 
must provide assurances that they have adequate legal authority 
under state and local law to carry out the SIP; section 110(a)(2)(C) 
provides that states must have a SIP-approved program to address 
certain sources as required by part C of title I of the CAA; and 
section 110(a)(2)(G) provides that states must have legal authority 
to address emergencies as well as contingency plans that are 
triggered in the event of such emergencies.
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    Examples of some of these ambiguities and the context in which the 
EPA interprets the ambiguous portions of section 110(a)(1) and 
110(a)(2) are discussed at length in our notice of proposed rulemaking: 
Promulgation of State Implementation Plan Revisions; Infrastructure 
Requirements for the 1997 and 2006 PM2.5, 2008 Lead, 2008 
Ozone, and 2010 NO2 National Ambient Air Quality Standards; 
South Dakota (79 FR 71040, Dec. 1, 2014) under ``III. What is the Scope 
of this Rulemaking?''
    With respect to certain other issues, the EPA does not believe that 
an action on a state's infrastructure SIP submission is necessarily the 
appropriate type of action in which to address possible deficiencies in 
a state's existing SIP. These issues include: (i) Existing provisions 
related to excess emissions from sources during periods of startup, 
shutdown, or malfunction (SSM) that may be contrary to the CAA and the 
EPA's policies addressing such excess emissions; (ii) existing 
provisions related to ``director's variance'' or ``director's 
discretion'' that may be contrary to the CAA because they purport to 
allow revisions to SIP-approved emissions limits while limiting public 
process or not requiring further approval by the EPA; and (iii) 
existing provisions for Prevention of Significant Deterioration (PSD) 
programs that may be inconsistent with current requirements of the 
EPA's ``Final NSR Improvement Rule,'' 67 FR 80186, Dec. 31, 2002, as 
amended by 72 FR 32526, June 13, 2007 (``NSR Reform'').

IV. What infrastructure elements are required under sections 110(a)(1) 
and (2)?

    CAA section 110(a)(1) provides the procedural and timing 
requirements for

[[Page 24527]]

SIP submissions after a new or revised NAAQS is promulgated. Section 
110(a)(2) lists specific elements the SIP must contain or satisfy. 
These infrastructure elements include requirements such as modeling, 
monitoring, and emissions inventories, which are designed to assure 
attainment and maintenance of the NAAQS. The elements that are the 
subject of this action are listed below.
     110(a)(2)(A): Emission limits and other control measures.
     110(a)(2)(B): Ambient air quality monitoring/data system.
     110(a)(2)(C): Program for enforcement of control measures.
     110(a)(2)(D): Interstate transport.
     110(a)(2)(E): Adequate resources and authority, conflict 
of interest, and oversight of local governments and regional agencies.
     110(a)(2)(F): Stationary source monitoring and reporting.
     110(a)(2)(G): Emergency powers.
     110(a)(2)(H): Future SIP revisions.
     110(a)(2)(J): Consultation with government officials; 
public notification; and PSD and visibility protection.
     110(a)(2)(K): Air quality modeling/data.
     110(a)(2)(L): Permitting fees.
     110(a)(2)(M): Consultation/participation by affected local 
entities.
    A detailed discussion of each of these elements is contained in the 
next section.
    Two elements identified in section 110(a)(2) are not governed by 
the three year submission deadline of section 110(a)(1) and are 
therefore not addressed in this action. These elements relate to part D 
of Title I of the CAA, and submissions to satisfy them are not due 
within three years after promulgation of a new or revised NAAQS, but 
rather are due at the same time nonattainment area plan requirements 
are due under section 172. The two elements are: (1) Section 
110(a)(2)(C) to the extent it refers to permit programs (known as 
``nonattainment NSR'') required under part D, and (2) section 
110(a)(2)(I), pertaining to the nonattainment planning requirements of 
part D. As a result, this action does not address infrastructure 
elements related to the nonattainment NSR portion of section 
110(a)(2)(C) or related to 110(a)(2)(I). Furthermore, the EPA 
interprets the CAA section 110(a)(2)(J) provision on visibility as not 
being triggered by a new NAAQS because the visibility requirements in 
part C, title 1 of the CAA are not changed by a new NAAQS.

V. How did Utah address the infrastructure elements of sections 
110(a)(1) and (2)?

    The Utah Department of Environmental Quality (Department or UDEQ) 
submitted certification of Utah's infrastructure SIP for the 2008 Pb 
NAAQS on January 19, 2012; 2008 ozone NAAQS on January 31, 2013; 2010 
NO2 NAAQS on January 31, 2013; 2010 SO2 NAAQS on 
June 2, 2013; and 2012 PM2.5 on December 4, 2015. Utah's 
infrastructure certifications demonstrate how the State, where 
applicable, has plans in place that meet the requirements of section 
110 for the 2008 Pb, 2008 ozone, 2010 NO2, 2010 
SO2 and 2012 PM2.5 NAAQS. These plans reference 
the Utah Code Annotated (UCA), Utah Administrative Code (UAC) rules, 
and the Utah SIP. These submittals are available within the electronic 
docket for today's proposed action at www.regulations.gov. The UCA, 
UAC, and the Utah SIP referenced in the submittals are publicly 
available at http://le.utah.gov/xcode/code.html, http://www.rules.utah.gov/publicat/code/r307/r307-110.htm and http://www.deq.utah.gov/Laws_Rules/daq/sip/index.htm. Air pollution control 
regulations and statutes that have been previously approved by the EPA 
and incorporated into the Utah SIP can be found at 40 CFR 52.2320.

VI. Analysis of the State Submittals

    1. Emission limits and other control measures: Section 110(a)(2)(A) 
requires SIPs to include enforceable emission limitations and other 
control measures, means, or techniques (including economic incentives 
such as fees, marketable permits, and auctions of emissions rights), as 
well as schedules and timetables for compliance as may be necessary or 
appropriate to meet the applicable requirements of this Act.
    The State's submissions for the 2008 Pb, 2008 ozone, 2010 
NO2, 2010 SO2, and 2012 PM2.5 
infrastructure requirements cite SIP Section I (Legal Authority) which 
allows the adoption of emission standards and other limits necessary 
for attainment and maintenance of national ambient air quality 
standards. SIP Section I (Legal Authority), in combination with other 
specific control measures adopted by the Utah Air Quality Board (AQB) 
and multiple SIP-approved state air quality regulations within the UAC 
and cited in Utah's certifications, provide enforceable emission 
limitations and other control measures, means of techniques, schedules 
for compliance, and other related matters necessary to meet the 
requirements of the CAA section 110(a)(2)(A) for the 2008 Pb, 2008 
ozone, 2010 NO2, 2010 SO2 and 2012 
PM2.5 NAAQS, subject to the following clarifications.
    First, this infrastructure element does not require the submittal 
of regulations or emission limitations developed specifically for 
attaining the 2008 Pb, 2008 ozone, 2010 NO2, 2010 
SO2 and 2012 PM2.5 NAAQS. Utah's certifications 
(contained within this docket) generally list provisions and 
enforceable control measures within its SIP which regulate pollutants 
through various programs. This includes its stationary source permit 
program which requires sources to demonstrate that emissions will not 
cause or contribute to a violation of any NAAQS. This suffices, in the 
case of Utah, to meet the requirements of section 110(a)(2)(A) for the 
2008 Pb, 2008 ozone, 2010 NO2, 2010 
SO2 and 2012 PM2.5 NAAQS.
    Second, as previously discussed, the EPA is not proposing to 
approve or disapprove any existing state rules with regard to 
director's discretion or variance provisions. A number of states, 
including Utah, have such provisions which are contrary to the CAA and 
existing EPA guidance (52 FR 45109, Nov. 24, 1987), and the agency 
plans to take action in the future to address such state regulations. 
In the meantime, the EPA encourages any state having a director's 
discretion or variance provision which is contrary to the CAA and EPA 
guidance to take steps to correct the deficiency as soon as possible.
    Finally, in this action, the EPA is also not proposing to approve 
or disapprove any existing state provision with regard to excess 
emissions during SSM of operations at a facility. A number of states, 
including Utah, have SSM provisions which are contrary to the CAA and 
existing EPA guidance \2\ and the agency is addressing such state 
regulations separately (80 FR 33840, June 12, 2015).
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    \2\ Steven Herman, Assistant Administrator for Enforcement and 
Compliance Assurance, and Robert Perciasepe, Assistant Administrator 
for Air and Radiation, Memorandum to the EPA Air Division Directors, 
``State Implementation Plans (SIPs): Policy Regarding Emissions 
During Malfunctions, Startup, and Shutdown.'' (September 20, 1999).
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    Therefore, the EPA is proposing to approve Utah's infrastructure 
SIP for the 2008 Pb, 2008 ozone, 2010 NO2, 2010 
SO2 and 2012 PM2.5 NAAQS with respect to the 
general requirement in section 110(a)(2)(A) to include enforceable 
emission limitations and other control measures, means, or techniques 
to meet the applicable requirements of this element.

[[Page 24528]]

    2. Ambient air quality monitoring/data system: Section 110(a)(2)(B) 
requires SIPs to ``provide for establishment and operation of 
appropriate devices, methods, systems, and procedures necessary'' to 
``(i) monitor, compile, and analyze data on ambient air quality, and 
(ii) upon request, make such data available to the Administrator.''
    The State's submissions cite UAC rule R307-110-5, which 
incorporates by reference SIP Section IV (Ambient Air Monitoring 
Program), and provides a brief description of the purposes of the air 
monitoring program approved by the EPA in the early 1980s and most 
recently on June 25, 2003 (68 FR 37744). Utah's annual monitoring 
network plan (AMNP), is made available by the Department for public 
review and comment prior to submission to the EPA.
    In this action, the EPA is acting only on Utah's submittal for 2008 
ozone NAAQS for CAA section 110(a)(2)(B). Utah's submittals for other 
pollutants will be addressed in a separate rulemaking action.
    Utah's 2013 AMNP for ozone was approved through a letter dated 
December 24, 2013 (available within the docket). Additionally, the 
State of Utah submits ozone data to the EPA's Air Quality System 
database in accordance with 40 CFR 58.16.
    We find that Utah's SIP and practices are adequate for the ambient 
air quality monitoring and data system requirements and therefore 
propose to approve the infrastructure SIP for the 2008 ozone NAAQS for 
this element.
    3. Program for enforcement of control measures: Section 
110(a)(2)(C) requires SIPs to ``include a program to provide for the 
enforcement of the measures described in subparagraph (A), and 
regulation of the modification and construction of any stationary 
source within the areas covered by the plan as necessary to assure that 
[NAAQS] are achieved, including a permit program as required in parts C 
and D.''
    To generally meet the requirements of section 110(a)(2)(C), the 
State is required to have SIP-approved PSD, nonattainment NSR, and 
minor NSR permitting programs that are adequate to implement the 2008 
Pb, 2008 ozone, 2010 NO2, 2010 SO2 and 2012 
PM2.5 NAAQS. As explained elsewhere in this action, the EPA 
is not evaluating nonattainment related provisions, such as the 
nonattainment NSR program required by part D of the Act. The EPA is 
evaluating the State's PSD program as required by part C of the Act, 
and the State's minor NSR program as required by 110(a)(2)(C).

Enforcement of Control Measures Requirement

    The State's submissions for the 2008 Pb, 2008 ozone, 2010 
NO2, 2010 SO2, and 2012 PM2.5 
infrastructure requirements cite SIP Section I (Legal Authority) which 
allows for enforcement of applicable laws, regulations, and standards 
and to seek injunctive relief, and also provides authority to prevent 
construction, modification, or operation of any stationary source at 
any location where emissions from such source will prevent the 
attainment or maintenance of a national standard or interfere with 
prevention of significant deterioration requirements.

PSD Requirements

    With respect to Elements (C) and (J), the EPA interprets the CAA to 
require each state to make an infrastructure SIP submission for a new 
or revised NAAQS demonstrating that the air agency has a complete PSD 
permitting program meeting the current requirements for all regulated 
NSR pollutants. The requirements of Element D(i)(II) may also be 
satisfied by demonstrating the air agency has a complete PSD permitting 
program that correctly addresses all regulated NSR pollutants. Utah has 
shown that it currently has a PSD program in place that covers all 
regulated NSR pollutants, including greenhouse gases (GHGs). SIP 
Section VIII (Prevention of Significant Deterioration) applies to all 
air pollutants regulated under the CAA.
    Utah implements the PSD program by, for the most part, 
incorporating by reference the federal PSD program as it existed on a 
specific date. The State periodically updates the PSD program by 
revising the date of incorporation by reference and submitting the 
change as a SIP revision. On October 25, 2013 (78 FR 63883), we 
approved portions of a Utah SIP revision that revised the date of 
incorporation by reference of the federal PSD program to July 1, 2011. 
As a result, the SIP revisions generally reflect changes to PSD 
requirements that the EPA has promulgated prior to the revised date of 
incorporation by reference.
    On July 15, 2011 (76 FR 41712), we approved portions of a Utah SIP 
revision that revised the date of incorporation by reference of the 
federal PSD program. That revision addressed the PSD requirements of 
the Phase 2 Ozone Implementation Rule promulgated in 2005 (70 FR 
71612). As a result, the approved Utah PSD program meets current 
requirements for ozone.
    On June 23, 2014, the United States Supreme Court addressed the 
application of PSD permitting requirements to GHG emissions. Utility 
Air Regulatory Group v. Environmental Protection Agency, 134 S.Ct. 
2427. The Supreme Court held that the EPA may not treat GHGs as an air 
pollutant for purposes of determining whether a source is a major 
source required to obtain a PSD permit. The Court also held that the 
EPA could continue to require that PSD permits, otherwise required 
based on emissions of pollutants other than GHGs (anyway sources) 
contain limitations on GHG emissions based on the application of Best 
Available Control Technology (BACT).
    In accordance with the Supreme Court decision, on April 10, 2015, 
the U.S. Court of Appeals for the District of Columbia Circuit (the DC 
Circuit) issued an amended judgment vacating the regulations that 
implemented Step 2 of the EPA's PSD and Title V Greenhouse Gas 
Tailoring Rule, but not the regulations that implement Step 1 of that 
rule. Step 1 of the Tailoring Rule covers sources that are required to 
obtain a PSD permit based on emissions of pollutants other than GHGs. 
Step 2 applied to sources that emitted only GHGs above the thresholds 
triggering the requirement to obtain a PSD permit. The amended judgment 
preserves, without the need for additional rulemaking by the EPA, the 
application of the BACT requirement to GHG emissions from Step 1 or 
``anyway'' sources.\3\ With respect to Step 2 sources, the DC Circuit's 
amended judgment vacated the regulations at issue in the litigation, 
including 40 CFR 51.166(b)(48)(v), ``to the extent they require a 
stationary source to obtain a PSD permit if greenhouse gases are the 
only pollutant (i) that the source emits or has the potential to emit 
above the applicable major source thresholds, or (ii) for which there 
is a significant emission increase from a modification.''
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    \3\ See 77 FR 41066 (July 12, 2012) rulemaking for definition of 
``anyway'' sources.
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    The EPA is planning to take additional steps to revise the federal 
PSD rules in light of the Supreme Court and subsequent DC Circuit 
opinions. Some states have begun to revise their existing SIP-approved 
PSD programs in light of these court decisions, and some states may 
prefer not to initiate this process until they have more information 
about the planned revisions to the EPA's PSD regulations. The EPA is 
not expecting states to have revised their PSD programs in anticipation 
of the EPA's planned actions to revise its

[[Page 24529]]

PSD program rules in response to the court decisions.
    At present, the EPA has determined Utah's SIP is sufficient to 
satisfy Elements (C), (D)(i)(II) element 3, and (J) with respect to 
GHGs. This is because the PSD permitting program previously approved by 
the EPA into the SIP continues to require that PSD permits issued to 
``anyway sources'' contain limitations on GHG emissions based on the 
application of BACT. The EPA most recently approved revisions to Utah's 
PSD program on February 6, 2014 (79 FR 7070). The approved Utah PSD 
permitting program still contains some provisions regarding Step 2 
sources that are no longer necessary in light of the Supreme Court 
decision and DC Circuit amended judgment. Nevertheless, the presence of 
these provisions in the previously-approved plan does not render the 
infrastructure SIP submission inadequate to satisfy Elements (C), 
(D)(i)(II), and (J). The SIP contains the PSD requirements for applying 
the BACT requirement to greenhouse gas emissions from ``anyway 
sources'' that are necessary at this time. The application of those 
requirements is not impeded by the presence of other previously-
approved provisions regarding the permitting of Step 2 sources. 
Accordingly, the Supreme Court decision and subsequent DC Circuit 
judgment do not prevent the EPA's approval of Utah's infrastructure SIP 
as to the requirements of Elements (C), (D)(i)(II) and (J).
    Finally, we evaluate the PSD program with respect to current 
requirements for PM2.5. In particular, on May 16, 2008, the 
EPA promulgated the rule, ``Implementation of the New Source Review 
Program for Particulate Matter Less Than 2.5 Micrometers 
(PM2.5)'' (73 FR 28321). On October 20, 2010 the EPA 
promulgated the rule, ``Prevention of Significant Deterioration (PSD) 
for Particulate Matter Less Than 2.5 Micrometers (PM2.5)--
Increments, Significant Impact Levels (SILs) and Significant Monitoring 
Concentration (SMC)'' (75 FR 64864). The EPA regards adoption of these 
PM2.5 rules as a necessary requirement when assessing a PSD 
program for the purposes of element (C).
    On January 4, 2013, the U.S. Court of Appeals, in Natural Resources 
Defense Council v. EPA, 706 F.3d 428 (D.C. Cir.), issued a judgment 
that remanded the EPA's 2007 and 2008 rules implementing the 1997 
PM2.5 NAAQS. The court ordered the EPA to ``repromulgate 
these rules pursuant to Subpart 4 consistent with this opinion.'' Id. 
at 437. Subpart 4 of part D, Title 1 of the CAA establishes additional 
provisions for particulate matter nonattainment areas.
    The 2008 Implementation rule addressed by Natural Resources Defense 
Council, ``Implementation of New Source Review (NSR) Program for 
Particulate Matter Less Than 2.5 Micrometers (PM2.5),'' (73 
FR 28321, May 16, 2008), promulgated NSR requirements for 
implementation of PM2.5 in nonattainment areas 
(nonattainment NSR) and attainment/unclassifiable areas (PSD). As the 
requirements of Subpart 4 only pertain to nonattainment areas, the EPA 
does not consider the portions of the 2008 Implementation rule that 
address requirements for PM2.5 attainment and unclassifiable 
areas to be affected by the court's opinion. Moreover, the EPA does not 
anticipate the need to revise any PSD requirements promulgated in the 
2008 Implementation rule in order to comply with the court's decision. 
Accordingly, the EPA's proposed approval of Utah's infrastructure SIP 
as to elements C or J with respect to the PSD requirements promulgated 
by the 2008 Implementation rule does not conflict with the court's 
opinion.
    The court's decision with respect to the nonattainment NSR 
requirements promulgated by the 2008 Implementation rule also does not 
affect the EPA's action on the present infrastructure action. The EPA 
interprets the Act to exclude nonattainment area requirements, 
including requirements associated with a nonattainment NSR program, 
from infrastructure SIP submissions due three years after adoption or 
revision of a NAAQS. Instead, these elements are typically referred to 
as nonattainment SIP or attainment plan elements, which would be due by 
the dates statutorily prescribed under subpart 2 through 5 under part 
D, extending as far as 10 years following designations for some 
elements.
    The second PSD requirement for PM2.5 is contained in the 
EPA's October 20, 2010 rule, ``Prevention of Significant Deterioration 
(PSD) for Particulate Matter Less Than 2.5 Micrometers 
(PM2.5)--Increments, Significant Impact Levels (SILs) and 
Significant Monitoring Concentration (SMC)'' (75 FR 64864). The EPA 
regards adoption of the PM2.5 increments as a necessary 
requirement when assessing a PSD program for the purposes of element 
(C).
    On March 14, 2012, Utah submitted revisions to the PSD program that 
adopt by reference federal provisions of 40 CFR part 52, section 21, as 
they existed on July 1, 2011. As that date is after the effective date 
of the two rules, the submission incorporates those requirements. The 
EPA approved the necessary portions of Utah's March 14, 2012 submission 
on October 25, 2013 (78 FR 63883). Utah's SIP-approved PSD program 
meets current requirements for PM2.5. The EPA therefore is 
proposing to approve Utah's SIP for the 2008 ozone, 2008 Pb, 2010 
NO2, 2010 SO2 and 2012 PM2.5 NAAQS 
with respect to the requirement in section 110(a)(2)(C) to include a 
permit program in the SIP as required by part C of the Act.

Minor NSR

    The State has a SIP-approved minor NSR program, adopted under 
section 110(a)(2)(C) of the Act. The minor NSR program is found in 
section II of the Utah SIP, and was approved by the EPA as section 2 of 
the SIP (68 FR 37744, June 25, 2003). Since approval of the minor NSR 
program, the State and the EPA have relied on the program to assure 
that new and modified sources not captured by the major NSR permitting 
programs do not interfere with attainment and maintenance of the NAAQS. 
Utah's minor NSR program, as approved into the SIP, covers the 
construction and modification of stationary sources of regulated NSR 
pollutants, including PM2.5, lead, and ozone and its 
precursors.
    The EPA is proposing to approve Utah's infrastructure SIP for the 
2008 Pb, 2008 ozone, 2010 NO2, 2010 SO2 and 2012 
PM2.5 NAAQS with respect to the general requirement in 
section 110(a)(2)(C) to include a program in the SIP that regulates the 
enforcement, modification, and construction of any stationary source as 
necessary to assure that the NAAQS are achieved.
    4. Interstate Transport: The interstate transport provisions in CAA 
section 110(a)(2)(D)(i) (also called ``good neighbor'' provisions) 
require each state to submit a SIP that prohibits emissions that will 
have certain adverse air quality effects in other states. CAA section 
110(a)(2)(D)(i) identifies four distinct elements related to the 
impacts of air pollutants transported across state lines. The two 
elements under 110(a)(2)(D)(i)(I) require SIPs to contain adequate 
provisions to prohibit any source or other type of emissions activity 
within the state from emitting air pollutants that will (element 1) 
contribute significantly to nonattainment in any other state with 
respect to any such national primary or secondary NAAQS, and (element 
2) interfere with maintenance by any other state with respect to the 
same NAAQS. The two elements under 110(a)(2)(D)(i)(II) require SIPs to 
contain adequate provisions to prohibit emissions that will interfere 
with

[[Page 24530]]

measures required to be included in the applicable implementation plan 
for any other state under part C (element 3) to prevent significant 
deterioration of air quality or (element 4) to protect visibility. In 
this action, the EPA is only addressing element 3 of CAA section 
110(a)(2)(D)(i)(II) for the 2008 ozone, 2008 Pb, 2010 SO2, 
2010 NO2 and 2012 PM2.5 NAAQS. All other 
transport elements will be addressed in separate rulemaking actions.

Evaluation of Interference With Measures To Prevent Significant 
Deterioration (PSD)

    With regard to the PSD portion of CAA section 110(a)(2)(D)(i)(II), 
this requirement may be met by a state's confirmation in an 
infrastructure SIP submission that new major sources and major 
modifications in the state are subject to a comprehensive EPA-approved 
PSD permitting program in the SIP that applies to all regulated new 
source review (NSR) pollutants and that satisfies the requirements of 
the EPA's PSD implementation rules.\4\ As noted in the discussion for 
infrastructure element (C) earlier in this notice, the EPA is proposing 
to approve CAA section 110(a)(2) element (C) for Utah's infrastructure 
SIP for the 2008 Pb, 2008 ozone, 2010 NO2, 2010 
SO2, and 2012 PM2.5 NAAQS with respect to PSD 
requirements. As discussed in detail in that section, Utah's SIP meets 
the current PSD-related requirements of section 110(a)(2)(C). For this 
reason, we are also proposing to approve Utah's infrastructure SIP as 
meeting the 110(a)(2)(D)(i)(II) element 3 (PSD) requirements for 2006 
24-hour PM2.5 NAAQS.
---------------------------------------------------------------------------

    \4\ See 2013 Memo at 31.
---------------------------------------------------------------------------

    In-state sources not subject to PSD for a particular NAAQS because 
they are in a nonattainment area for that standard may also have the 
potential to interfere with PSD in an attainment or unclassifiable area 
of another state.\5\ One way a state may satisfy element 3 with respect 
to these sources is by citing an air agency's EPA-approved 
nonattainment NSR provisions addressing any pollutants for which the 
state has designated nonattainment areas. Utah has a SIP-approved 
nonattainment NSR program which ensures regulation of major sources and 
major modifications in nonattainment areas, and therefore satisfies 
element 3 with regard to this requirement.\6\
---------------------------------------------------------------------------

    \5\ Id. at 31.
    \6\ See R307-403.
---------------------------------------------------------------------------

    The EPA is proposing to approve the infrastructure SIP submission 
with regard to the requirements of element 3 of section 110(a)(2)(D)(i) 
for the 2006 PM2.5, 2008 Pb, 2008 Ozone, 2010 
NO2, 2010 SO2 and 2012 PM2.5 NAAQS.
    5. Interstate and International transport provisions: CAA section 
110(a)(2)(D)(ii) requires SIPs to include provisions ensuring 
compliance with the applicable requirements of CAA sections 126 and 115 
(relating to interstate and international pollution abatement). 
Specifically, CAA section 126(a) requires new or modified major sources 
to notify neighboring states of potential impacts from the source.
    Section 126(a) of the CAA requires notification to affected, nearby 
states of major proposed new (or modified) sources. Sections 126(b) and 
(c) pertain to petitions affected states may seek from the 
Administrator of the EPA (Administrator) regarding sources violating 
the ``interstate transport'' provisions of section 110(a)(2)(D)(i). 
Section 115 of the CAA similarly pertains to international transport of 
air pollution.
    As required by 40 CFR 51.166(q)(2)(iv), Utah's SIP-approved PSD 
program requires notice to states whose air quality may be impacted by 
the emissions of sources subject to PSD.\7\ This suffices to meet the 
notice requirement of section 126(a).
---------------------------------------------------------------------------

    \7\ See R307-110-9.
---------------------------------------------------------------------------

    Utah has no pending obligations under sections 126(c) or 115(b) of 
the CAA; therefore, its SIP currently meets the requirements of those 
sections. In summary, the SIP meets the requirements of CAA section 
110(a)(2)(D)(ii), and the EPA is therefore proposing approval of this 
element for the 2008 Pb, 2008 ozone, 2010 NO2, 2010 
SO2 and 2012 PM2.5 NAAQS. The EPA is also 
proposing to approve the Utah SIP as meeting the requirements of 
section 110(a)(2)(D)(ii) for the 1997 and 2006 PM2.5 NAAQS. 
Utah submitted an infrastructure certification generally addressing CAA 
section 110(a)(2)(D) for the 1997 PM2.5 NAAQS on December 3, 
2007, and 2006 PM2.5 NAAQS on September 21, 2010.
    6. Adequate resources: Section 110(a)(2)(E)(i) requires states to 
provide ``necessary assurances that the State [. . .] will have 
adequate personnel, funding, and authority under State law to carry out 
[the SIP] (and is not prohibited by any provision of federal or state 
law from carrying out the SIP or portion thereof).'' Section 
110(a)(2)(E)(ii) also requires each state to ``comply with the 
requirements respecting State boards'' under CAA section 128. Section 
110(a)(2)(E)(iii) requires states to provide ``necessary assurances 
that, where the State has relied on a local or regional government, 
agency, or instrumentality for the implementation of any [SIP] 
provision, the State has responsibility for ensuring adequate 
implementation of such [SIP] provision.''
a. Sub-Elements (i) and (iii): Adequate Personnel, Funding, and Legal 
Authority Under State Law To Carry Out Its SIP, and Related Issues
    The provisions contained in Chapter 2 of Title 19 of the Utah Code 
and Utah SIP Section I, Legal Authority provide UDAQ and the AQB 
adequate authority to carry out its SIP obligations with respect to the 
2008 Pb, 2008 ozone, 2010 NO2, 2010 
SO2 and 2012 PM2.5 NAAQS. The State receives 
sections 103 and 105 grant funds through its Performance Partnership 
Grant along with required state matching funds to provide funding 
necessary to carry out Utah's SIP requirements (Utah SIP Section V, 
Resources). Utah's Performance Partnership Agreement (available within 
the docket) with the EPA documents resources needed to provide 
resources to carry out agreed upon environmental program goals, 
measures, and commitments, including developing and implementing 
appropriate SIPs for all areas of the State. Annually, states update 
these grant commitments based on current SIP requirements, air quality 
planning, and applicable requirements related to the NAAQS. Utah 
satisfactorily met all commitments agreed to in the Air Planning 
Agreement for fiscal year 2015. Furthermore, R307-414, Permits: Fees 
for Approval Orders, requires the owner and operator of each new major 
source or major modification to pay a fee sufficient to cover 
reasonable costs of reviewing and acting upon the notice of intent and 
implementing and enforcing requirements placed on such source by any 
approval order issued. Collectively, these rules and commitments 
provide evidence that Utah DAQ has adequate personnel, funding, and 
legal authority to carry out the State's implementation plan and 
related issues.
    With respect to section 110(a)(2)(E)(iii), the regulations cited by 
Utah in their certifications (Utah SIP Section VI, Intergovernmental 
Cooperation) and contained within this docket also provide the 
necessary assurances that the State has responsibility for adequate 
implementation of SIP provisions by local governments. Therefore, we 
propose to approve Utah's SIP as meeting the requirements of section 
110(a)(2)(E)(i) and (E)(iii) for the 2008 Pb, 2008 ozone, 
2010 NO2, 2010 SO2 and 2012 PM2.5 
NAAQS.

[[Page 24531]]

b. Sub-Element (ii): State Boards
    Section 110(a)(2)(E)(ii) requires each state's SIP to contain 
provisions that comply with the requirements of section 128 of the CAA. 
Section 128 contains two explicit requirements: (i) That ``any board or 
body which approves permits or enforcement orders under [the CAA] shall 
have at least a majority of members who represent the public interest 
and do not derive any significant portion of their income from persons 
subject to permits or enforcement orders'' under the CAA; and (ii) that 
``any potential conflicts of interest by members of such board or body 
or the head of an executive agency with similar powers be adequately 
disclosed.''
    In our November 25, 2013 (78 FR 63883) action, we disapproved 
Utah's April 17, 2008 and September 21, 2010 infrastructure SIP 
submissions for the 1997 and 2006 PM2.5 NAAQS for CAA 
Section 110(a)(2)(E)(ii) because the Utah SIP did not contain 
provisions meeting requirements of CAA section 128. Under section 
110(c)(1)(B), this disapproval started a two-year clock for the EPA to 
promulgate a federal implementation plan (FIP) to address the 
deficiency.
    On March 14, 2016, the EPA received a submission from the State of 
Utah to address the requirements of section 128, containing new rule 
language approved by the Utah AQB on March 2, 2016. A copy of the 
submission, including the new rules, Conflict of Interest R307-104-1 
(Authority), R307-104-2 (Purpose) and R307-104-3 (Disclosure of 
conflict of interest), is available within this docket. These rules 
address conflict of interest requirements of section 128(a)(2). We 
propose to approve this new rule language as meeting the requirements 
of section 128 for the reasons explained in more detail below. Because 
this revision meets the requirements of section 128, we also propose to 
approve the State's infrastructure SIP submissions for element 
110(a)(2)(E)(ii). The State submitted the provisions to meet section 
128 separately, but section 128 is not NAAQS-specific and once the 
State has met the requirements of section 128, that is sufficient for 
purposes of section 110(a)(2)(E)(ii) for all NAAQS. If we finalize this 
proposed approval for the 2008 Pb, 2008 ozone, 2010 
NO2, 2010 SO2, and 2012 PM2.5 NAAQS, 
this will also resolve the prior disapproval for element 
110(a)(2)(E)(ii) for the 1997 and 2006 PM2.5 NAAQS and 
terminate the EPA's FIP obligation.
    We are proposing to approve the State's March 14, 2016 SIP 
submission as meeting the requirements of section 128 because we 
believe that it complies with the statutory requirements and is 
consistent with the EPA's guidance recommendations concerning section 
128. In 1978, the EPA issued a guidance memorandum recommending ways 
states could meet the requirements of section 128, including suggested 
interpretations of certain key terms in section 128.\8\ In this 
proposal notice, we discuss additional relevant aspects of section 128. 
We first note that, in the conference report of the 1977 amendments to 
the CAA, the conference committee stated, ``[i]t is the responsibility 
of each state to determine the specific requirements to meet the 
general requirements of [section 128].'' \9\ This legislative history 
indicates that Congress intended states to have some latitude in 
adopting SIP provisions with respect to section 128, so long as states 
meet the statutory requirements of the section. We also note that 
Congress explicitly provided in section 128 that states could elect to 
adopt more stringent requirements, as long as the minimum requirements 
of section 128 are met.
---------------------------------------------------------------------------

    \8\ Memorandum from David O. Bickart, Deputy General Counsel, to 
Regional Air Directors, Guidance to States for Meeting Conflict of 
Interest Requirements of Section 128 (Mar. 2, 1978).
    \9\ H.R. Rep. 95-564 (1977), reprinted in 3 Legislative History 
of the Clean Air Act Amendments of 1977, 526-27 (1978).
---------------------------------------------------------------------------

    In implementing section 128, the EPA has identified a number of key 
considerations relevant to evaluation of a SIP submission. The EPA has 
identified these considerations in the 1978 guidance and in subsequent 
rulemaking actions on SIP submissions relevant to section 128, whether 
as SIP revisions for this specific purpose or as an element of broader 
actions on infrastructure SIP submissions for one or more NAAQS.
    Each state must meet the requirements of section 128 through 
provisions that the EPA approves into the state's SIP and are thus made 
federally enforceable. Section 128 explicitly mandates that each SIP 
``shall contain requirements'' that satisfy subsections 128(a)(1) and 
128(a)(2). A mere narrative description of state statutes or rules, or 
of a state's current or past practice in constituting a board or body 
and in disclosing potential conflicts of interest, is not a requirement 
contained in the SIP and does not satisfy the plain text of section 
128.
    Subsection 128(a)(1) applies only to states that have a board or 
body that is composed of multiple individuals and that, among its 
duties, approves permits or enforcement orders under the CAA. It does 
not apply in states that have no such multi-member board or body that 
performs these functions, and where instead a single head of an agency 
or other similar official approves permits or enforcement orders under 
the CAA. This flows from the text of section 128, for two reasons. 
First, as subsection 128(a)(1) refers to a majority of members of the 
board or body in the plural, we think it reasonable to read subsection 
128(a)(1) as not creating any requirements for an individual with sole 
authority for approving permits or enforcement orders under the CAA. 
Second, subsection 128(a)(2) explicitly applies to the head of an 
executive agency with ``similar powers'' to a board or body that 
approves permits or enforcement orders under the CAA, while subsection 
128(a)(1) omits any reference to heads of executive agencies. We infer 
that subsection 128(a)(1) should not apply to heads of executive 
agencies who approve permits or enforcement orders. States with no 
multi-member board or body that performs these functions, and instead 
have a single head of an agency or other similar official who approves 
CAA permits or enforcement orders, can satisfy the requirements of CAA 
128(a)(1) with a negative declaration to that effect.
    Subsection 128(a)(2) applies to all states, regardless of whether 
the state has a multi-member board or body that approves permits or 
enforcement orders under the CAA. Although the title of section 128 is 
``State boards,'' the language of subsection 128(a)(2) explicitly 
applies where the head of an executive agency, rather than a board or 
body, approves permits or enforcement orders. In instances where the 
head of an executive agency delegates his or her power to approve 
permits or enforcement orders, or where statutory authority to approve 
permits or enforcement orders is nominally vested in another state 
official, the requirement to adequately disclose potential conflicts of 
interest still applies. In other words, the EPA interprets section 
128(a)(2) to apply to all states, regardless of whether a state board 
or body approves permits or enforcement orders under the CAA or whether 
a head of a state agency (or his/her delegates) performs these duties. 
Thus, all state SIPs must contain provisions that require adequate 
disclosure of potential conflicts of interest in order to meet the 
requirements of subsection 128(a)(2). The question of which entities or 
parties must be subject to such disclosure requirements must be 
evaluated by states and the EPA in light of the specific facts and 
circumstances of each state's regulatory structure.

[[Page 24532]]

    A state may satisfy the requirements of section 128 by submitting 
for adoption into the SIP a provision of state law that closely tracks 
or mirrors the language of the applicable provisions of section 128. A 
state may take this approach in two ways. First, the state may adopt 
the language of subsections 128(a)(1) and 128(a)(2) verbatim. Under 
this approach, the state will be able to meet the continuing 
requirements of section 128 without any additional, future SIP 
revisions, even if the state adds or removes authority, either at the 
state or local level, to individual or to boards or bodies to approve 
permits or enforcement orders under the CAA so long as the state 
continues to meet section 128 requirements.
    Second, the state may modify the language of subsections 128(a)(1) 
(if applicable) and 128(a)(2) to name the particular board, body, or 
individual official with approval authority. In this case, if the state 
subsequently modifies that authority, the state may have to submit a 
corresponding SIP revision to meet the continuing requirements of 
section 128. If the state chooses to not mirror the language of section 
128, the state may adopt state statutes and/or regulations that 
functionally impose the same requirements as those of section 128, 
including definitions for key terms such as those recommended in the 
EPA's 1978 guidance. While either of these approaches would meet the 
minimum requirements of section 128, the statute also explicitly 
authorizes states to adopt more stringent requirements, for example to 
impose additional requirements for recusal of board members from 
decisions, above and beyond the explicit board composition 
requirements. Although such recusal alone does not meet the 
requirements of section 128, states have the authority to require that 
over and above the explicit requirements of section 128. These 
approaches give states flexibility in implementing section 128, while 
still ensuring consistency with the statute.
    As previously explained, the EPA interprets subsection 128(a)(1) to 
apply only to states that have a board or body with multiple members 
that, among its duties, approves permits or enforcement orders under 
the Act. In its 2012 PM2.5 NAAQS certification, the State 
asserts that there is no such multi-member board or body, citing Utah 
Code section 19-2-104, Powers of the board. Subsection 19-2-104(7) 
specifies that the Utah AQB lacks authority over permits, and 
subsection 19-2-104(3) gives the Utah AQB authority only to recommend 
that the Director issue and enforce orders. The EPA proposes to 
determine that the Utah AQB does not approve permits or enforcement 
orders under the Act, and as a result, Utah need not submit any 
provisions to address the requirements of section 128(a)(1).\10\ 
However, the EPA interprets subsection 128(a)(2) to apply to all 
states, regardless of whether the state has a multi-member board that 
approves permits or enforcement orders. As a result, 128(a)(2) applies 
to Utah, and, as previously explained, must be met through SIP-
approved, federally enforceable provisions.
---------------------------------------------------------------------------

    \10\ In 2012, the Utah Legislature amended state law to 
generally transfer authority of the Utah AQB over permits and 
enforcement orders to the Director of Utah DAQ and Executive 
Director of Utah DEQ. See 78 FR 52477, 52482 (Aug. 23, 2013).
---------------------------------------------------------------------------

    The EPA has evaluated Utah's submittal containing R307-104-1 
(Authority), R307-104-2 (Purpose) and R307-104-3 (Disclosure of 
conflict of interest) (available within this docket) from the State in 
light of the requirements of section 128, these key considerations 
previously noted, and the recommendations in the 1978 guidance. To meet 
the requirements of subsection 128(a)(2), the State's R307-104-3 
(Disclosure of conflict of interest), includes disclosure of conflicts 
of interest requirements applying to ``any member of the board or body 
which approves permits or enforcement orders, the head of the Utah 
[DAQ] with similar powers, and the head of the Utah [DEQ] with similar 
powers.'' Under Utah's administrative procedures, the Director of Utah 
DAQ has the initial authority to issue air permits and enforcement 
orders, and the Executive Director of Utah DEQ has the ultimate 
authority to resolve administrative adjudicative proceedings regarding 
permits and enforcement orders. See Utah Code 19-1-301, 19-1-301.5. 
Thus, Utah's submittal addresses disclosure of potential conflicts of 
interest from the heads of executive agencies that approve permits and 
enforcement orders under the Act.
    Utah's provisions are also sufficient for adequate disclosure. 
Under R307-104-3(2), ``[e]very individual listed in R307-104-3(1) who 
is an officer, director, agent, employee, or the owner of a substantial 
interest in any business entity which is subject to the regulation of 
the agency by which the individual listed in R307-104-3(1) is employed, 
shall disclose any position held and the precise nature and value of 
the interest upon first becoming a public officer or public employee 
listed in R307-104-3(1), and again whenever his or her position in the 
business entity changes significantly or if the value of his or her 
interest in the entity is significantly increased.'' This language 
covers a sufficiently broad range of potential conflicts of interest 
with any business subject to regulation by Utah DAQ, including 
permittees and the subjects of enforcement orders. The form of 
disclosure is also adequate: It is made in a sworn statement to the 
attorney general and is made publicly available. We propose to find 
that these procedures provide adequate disclosure of potential 
conflicts of interest within the meaning of subsection 128(a)(2).
    In summary, the EPA proposes to approve Utah's March 14, 2016 
submittal into the SIP to meet the requirements of section 128 of the 
Act. We also propose to approve Utah's infrastructure SIP with respect 
to the requirements of Section 110(a)(2)(E)(ii) for 2008 Pb, 2008 
ozone, 2010 NO2, 2010 SO2 and 2012 
PM2.5 NAAQS.
    7. Stationary source monitoring system: Section 110(a)(2)(F) 
requires: (i) ``the installation, maintenance, and replacement of 
equipment, and the implementation of other necessary steps, by owners 
or operators of stationary sources to monitor emissions from such 
sources; (ii) periodic reports on the nature and amounts of emissions 
and emissions-related data from such sources; and (iii) correlation of 
such reports by the State agency with any emission limitations or 
standards established pursuant to [the Act], which reports shall be 
available at reasonable times for public inspection.''
    The provisions cited by Utah in SIP Section III Source 
Surveillance, (including R307-150, and R307-165) pertain to its program 
of periodic emissions testing and plant inspections of stationary 
sources, and related testing requirements and protocols (including 
periodic reporting) to assure compliance with emissions limits. R307-
170 requires certain large sources to install and maintain continuous 
emission monitors to assure compliance with emission limitations 
established in approval orders and the SIP. In addition, Utah provides 
for monitoring, recordkeeping, and reporting requirements for sources 
subject to minor and major source permitting.
    Furthermore, Utah is required to submit emissions data to the EPA 
for purposes of the National Emissions Inventory (NEI). The NEI is the 
EPA's central repository for air emissions data. The EPA published the 
Air Emissions Reporting Rule (AERR) on December 5, 2008, which modified 
the requirements for collecting and reporting air emissions data (73 FR 
76539). The AERR shortened the time states had to report emissions data 
from 17 to 12

[[Page 24533]]

months, giving states one calendar-year to submit emissions data. All 
states are required to submit a comprehensive emissions inventory every 
three years and report emissions for certain larger sources annually 
through the EPA's online Emissions Inventory System. States report 
emissions data for the six criteria pollutants and their associated 
precursors--nitrogen oxides, sulfur dioxide, ammonia, lead, carbon 
monoxide, particulate matter and volatile organic compounds. Many 
states also voluntarily report emissions of hazardous air pollutants. 
Utah made its latest update to the NEI in March 2016. The EPA compiles 
the emissions data, supplementing it where necessary, and releases it 
to the general public through the Web site https://www.epa.gov/air-emissions-inventories.
    Based on the analysis above, we propose to approve the Utah SIP as 
meeting the requirements of CAA section 110(a)(2)(F) for the 2008 Pb, 
2008 ozone, 2010 NO2, 2010 SO2 and 
2012 PM2.5 NAAQS.
    8. Emergency powers: Section 110(a)(2)(G) of the CAA requires 
infrastructure SIPs to ``provide for authority comparable to that in 
[CAA section 303] and adequate contingency plans to implement such 
authority[.]''
    Under CAA section 303, the EPA Administrator has authority to bring 
suit to immediately restrain an air pollution source that presents an 
``imminent and substantial endangerment to public health or welfare, or 
the environment.'' \11\ If such action may not practicably assure 
prompt protection, then the Administrator has authority to issue 
temporary administrative orders to protect the public health or 
welfare, or the environment, and such orders can be extended if the EPA 
subsequently files a civil suit. We propose to find that Utah's 
infrastructure SIP submittals provide for authority for the State 
comparable to that granted to the EPA Administrator to act in the face 
of an imminent and substantial endangerment to the public's health or 
welfare, or the environment.
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    \11\ A discussion of the requirements for meeting CAA section 
303 is provided in our notice of proposed rulemaking: Promulgation 
of State Implementation Plan Revisions; Infrastructure Requirements 
for the 1997 and 2006 PM2.5, 2008 Lead, 2008 Ozone, and 
2010 NO2 National Ambient Air Quality Standards; South 
Dakota (79 FR 71040, Dec. 1, 2014) under ``VI. Analysis of State 
Submittals, 8. Emergency powers.''
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    Utah's SIP submittals with regard to the section 110(a)(2)(G) 
emergency order requirements cite the EPA approved provisions (State 
SIP Section I Legal Authority codified at R307-110-2) to abate 
pollutant emissions on an emergency basis to prevent substantial 
endangerment to the health of persons. Utah Code 19-2-116(3)(a) also 
provides the director the power to ``initiate an action for appropriate 
injunctive relief . . . when it appears necessary for the protection of 
health and welfare.'' Utah Code 19-2-112(1)(a) provides authority to 
the ``executive director, with the concurrence of the governor'' to 
order people ``causing or contributing to . . . air pollution to reduce 
or discontinue immediately the emission of air pollutants'' if the 
``executive director finds that a generalized condition of air 
pollution exists and that it creates an emergency requiring immediate 
action to protect human health or safety.'' Utah Code 19-2-112(2)(a) 
describes how in instances of an ``absence of a generalized condition 
of air pollution'' referred to in subsection (1), the executive 
director may still commence adjudicative proceedings as long as the 
executive director ``finds that emissions from the operation of one or 
more air pollutant sources is causing imminent danger to human health 
or safety.''
    In regard to imminent and substantial endangerment to the 
environment, Utah's Emergency Management Act allows the Governor to 
issue rules and regulations having the ``full force and effect of law'' 
during a state of emergency. Additionally, Utah Code 53-2a-209(1) 
allows the Governor to suspend rules and regulations of state agencies 
that would prevent the ability to adequately deal with such disasters. 
See Utah Code 53-2a-209(3).
    While no single Utah statute mirrors the authorities of CAA section 
303, we propose to find that the combination of Utah Code, UAC Rules, 
and Utah's Emergency Management Act provisions previously discussed 
provide for authority comparable to section 303. Section 303 authorizes 
the Administrator to immediately bring suit to restrain and issue 
emergency orders when necessary, to enable the Administrator to take 
prompt administrative action against any person causing or contributing 
to air pollution that presents an imminent and substantial endangerment 
to public health or welfare, or the environment. Therefore, we propose 
that Utah's SIP submittals sufficiently meet the requirements of CAA 
110(a)(2)(G) because they demonstrate that Utah has authority 
comparable to CAA section 303.
    States must also have adequate contingency plans adopted into their 
SIP to implement the air agency's emergency episode authority (as 
previously discussed). This can be done by submitting a plan that meets 
the applicable requirements of 40 CFR part 51, subpart H for the 
relevant NAAQS if the NAAQS is covered by those regulations. The EPA 
approved Utah's State SIP Section VII (Prevention of Air Pollution 
Emergency Episodes), codified at R307-110-8, most recently on February 
14, 2006 at 71 FR 7679. We find that Utah's air pollution emergency 
rules include PM10,\12\ ozone, NO2, and 
SO2; establish stages of episode criteria; provide for 
public announcement whenever any episode stage has been determined to 
exist; and specify emission control actions to be taken at each episode 
stage, consistent with the EPA emergency episode SIP requirements set 
forth at 40 CFR part 51 subpart H (prevention of air pollution 
emergency episode) for particulate matter, ozone, NO2, and 
SO2.
---------------------------------------------------------------------------

    \12\ The EPA has not yet promulgated regulations for ambient 
levels pertaining to priority levels for PM2.5 under the 
2012 NAAQS (2013 Memo, p. 47). EPA's September 25, 2009 Memo 
(available within the docket) suggested that states with areas that 
have had a PM2.5 exceedance greater than 140.4 mg/m3 
should develop and submit an emergency episode plan. If no such 
concentration was recorded in the last three years, the guidance 
suggested that the State can rely on its general emergency 
authorities. In this rulemaking, we continue to view these 
suggestions as appropriate in assessing Utah's SIP for this element. 
Utah has not had such a recorded PM2.5 level and thus an 
emergency episode plan for PM2.5 is not necessary. The 
SIP therefore meets the requirements of CAA section 110(a)(2)(G) for 
the 2012 PM2.5 NAAQS.
---------------------------------------------------------------------------

    As noted in the 2011 Memo ``based on [the] EPA's experience to date 
with the Pb NAAQS and designating Pb nonattainment areas, [the] EPA 
expects that an emergency episode associated with Pb emissions would be 
unlikely and, if it were to occur, would be the result of a malfunction 
or other emergency situation at a relatively large source of Pb'' (page 
14).\13\ Accordingly, the EPA believes the central components of a 
contingency plan would be to reduce emissions from the source at issue 
and communicate with the public as needed. We note that 40 CFR part 51, 
subpart H (51.150-51.152) and 40 CFR part 51, Appendix L do not apply 
to Pb.
---------------------------------------------------------------------------

    \13\ October 14, 2011, ``Guidance on Infrastructure SIP Elements 
Required Under Sections 110(a)(1) and (2) for the 2008 Lead (Pb) 
National Ambient Air Quality Standards (NAAQS).''
---------------------------------------------------------------------------

    Based on the above analysis, we propose approval of Utah's SIP as 
meeting the requirements of CAA section 110(a)(2)(G) for the 2008 Pb, 
2008 ozone, and 2010 NO2, 2010 SO2 and 2012 
PM2.5 NAAQS.
    9. Future SIP revisions: Section 110(a)(2)(H) requires that SIPs 
provide for revision of such plan: (i) ``[f]rom time to time as may be 
necessary to take account of revisions of such national primary or 
secondary ambient air

[[Page 24534]]

quality standard or the availability of improved or more expeditious 
methods of attaining such standard[;] and (ii) except as provided in 
paragraph (3)(C), whenever the Administrator finds on the basis of 
information available to the Administrator that the [SIP] is 
substantially inadequate to attain the [NAAQS] which it implements or 
to otherwise comply with any additional requirements under this 
[Act].''
    Utah SIP Section I cites 19-2-104 and 19-2-109 of the Utah Code. 
Sections 19-2-104 and 19-2-109 give the AQB sufficient authority to 
meet the requirements of CAA section 110(a)(2)(H). Therefore, we 
propose to approve Utah's SIP as meeting the requirements of CAA 
section 110(a)(2)(H).
    10. Consultation with government officials, public notification, 
PSD and visibility protection: Section 110(a)(2)(J) requires that each 
SIP ``meet the applicable requirements of section 121 of this title 
(relating to consultation), section 127 of this title (relating to 
public notification), and part C of this subchapter (relating to PSD of 
air quality and visibility protection).''
    In its certifications, the State cites SIP Section I (Legal 
Authority) adopting requirements for transportation consultation, SIP 
Section VI (Intergovernmental Cooperation), and SIP Section XII 
(Transportation Conformity Consultation) to meet the requirements of 
CAA section 121. The State has demonstrated that it has the authority 
and rules in place to provide a process of consultation with general 
purpose local governments, designated organizations of elected 
officials of local governments and any Federal Land Manager having 
authority over federal land to which the SIP applies, consistent with 
the requirements of CAA section 121 (see 59 FR 2988, Jan. 20, 1994). 
Furthermore, SIP section XVI, cited by Utah, meets the general 
requirements of CAA section 127 to notify the public when the NAAQS 
have been exceeded.
    The State has a SIP-approved PSD program that incorporates by 
reference the federal program at 40 CFR 52.21; these provisions are 
located in R307-405-2 of the UAC. The EPA has further evaluated Utah's 
SIP-approved PSD program in this proposed action under VI.3 of this 
notice which analyzes whether the Utah SIP has met CAA section 
110(a)(2)(C). There, we propose approval with respect to the PSD 
requirements of element (C); we likewise do so here with respect to the 
PSD requirements of element (J).
    Finally, with regard to the applicable requirements for visibility 
protection, the EPA recognizes states are subject to visibility and 
regional haze program requirements under part C of the Act. In the 
event of the establishment of a new NAAQS, however, the visibility and 
regional haze program requirements under part C do not change. Thus, we 
find that there are no applicable visibility requirements under section 
110(a)(2)(J) when a new NAAQS becomes effective.
    Based on the above analysis, we propose to approve the Utah SIP as 
meeting the requirements of CAA section 110(a)(2)(J) for the 2008 Pb, 
2008 ozone, 2010 NO2, 2010 SO2 and 
2012 PM2.5 NAAQS.
    11. Air quality and modeling/data: Section 110(a)(2)(K) requires 
each SIP provide for: (i) ``the performance of such air quality 
modeling as the Administrator may prescribe for the purpose of 
predicting the effect on ambient air quality of any emissions of any 
air pollutant for which the Administrator has established a [NAAQS]; 
and (ii) the submission, upon request, of data related to such air 
quality modeling to the Administrator.''
    UAC rule R307-405-13 incorporates by reference the air quality 
model provisions of 40 CFR 52.21(l), which includes the air quality 
model requirements of appendix W of 40 CFR part 51, pertaining to the 
Guideline on Air Quality Models. Additionally, Utah Code 19-104(1)(a)-
(b) provide the AQB with the authority to propose and finalize rules 
that require air quality modeling for the purpose of predicting the 
effect on ambient air quality relating to NAAQS. As a result, the SIP 
provides for such air quality modeling as the Administrator has 
prescribed.
    Therefore, we propose to approve the Utah SIP as meeting the CAA 
section 110(a)(2)(K) for the 2008 Pb, 2008 ozone, 2010 
NO2, 2010 SO2 and 2012 PM2.5 NAAQS.
    12. Permitting fees: Section 110(a)(2)(L) requires ``the owner or 
operator of each major stationary source to pay to the permitting 
authority, as a condition of any permit required under this [Act], a 
fee sufficient to cover[:] (i) The reasonable costs of reviewing and 
acting upon any application for such a permit[;] and (ii) if the owner 
or operator receives a permit for such source, the reasonable costs of 
implementing and enforcing the terms and conditions of any such permit 
(not including any court costs or other costs associated with any 
enforcement action), until such fee requirement is superseded with 
respect to such sources by the Administrator's approval of a fee 
program under [title] V.''
    UAC rule R307-414, Permits: Fees for Approval Orders, requires the 
owner and operator of each new major source or major modification to 
pay a fee sufficient to cover the reasonable costs of reviewing and 
acting upon the notice of intent and implementing and enforcing 
requirements placed on such source by any approval order issued. The 
EPA approved R307-414 most recently on February 14, 2006 at 71 FR 7679. 
SIP Section I (Legal Authority) ``identifies the statutory authority to 
charge a fee to major sources to cover permit and enforcement expenses 
. . .'' SIP Section I was codified at R307-10-2 and the EPA approved it 
most recently on June 25, 2003 at 68 FR 37744.
    We also note that all the State's certifications cite R307-415 
which is the regulation that provides for collection of permitting fees 
under Utah's approved title V permit program (60 FR 30192, June 8, 
1995). As discussed in that approval, the State demonstrated that the 
fees collected were sufficient to administer the program.
    Therefore we propose to approve the submissions as supplemented by 
the State for the 2008 Pb, 2008 ozone, 2010 NO2, 
2010 SO2 and 2012 PM2.5 NAAQS.
    13. Consultation/participation by affected local entities: Section 
110(a)(2)(M) requires states to ``provide for consultation and 
participation [in SIP development] by local political subdivisions 
affected by [the SIP].''
    The provisions cited in Utah's SIP submittals (SIP Section VI 
(Intergovernmental Cooperation) codified at R307-110-7 and SIP Section 
XII (Transportation Conformity Consultation) codified at R307-110-20, 
contained within this docket) meet the requirements of CAA section 
110(a)(2)(M). We propose to approve Utah's SIP as meeting these 
requirements for the 2008 Pb, 2008 ozone, 2010 
NO2, 2010 SO2 and 2012 PM2.5 NAAQS.

VII. What action is the EPA taking?

    In this action, the EPA is proposing to approve infrastructure 
elements for the 2008 Pb, 2008 ozone, 2010 NO2, 
2010 SO2 and 2012 PM2.5 NAAQS from the State's 
certifications as shown in Table 1. Elements we propose no action on 
are reflected in Table 2. Finally, the EPA is proposing to approve a 
new UAC submitted on March 14, 2016 to satisfy requirements of element 
(E)(ii),which refers to requirements related to state boards.
    A comprehensive summary of infrastructure elements, and revisions 
and additions to the UAC organized by

[[Page 24535]]

the EPA's proposed rule action are provided in Table 1 and Table 2.

Table 1--List of Utah Infrastructure Elements and Revisions That the EPA
                         Is Proposing To Approve
------------------------------------------------------------------------
                          Proposed for approval
-------------------------------------------------------------------------
December 3, 2007 submittal--1997 PM2.5 NAAQS: (D)(ii)
September 21, 2010 submittal--2006 PM2.5 NAAQS: (D)(ii)
January 19, 2012 submittal--2008 Pb NAAQS:
    (A), (C), (D)(i)(II) element 3, (D)(ii), (E), (F), (G), (H), (J),
     (K), (L) and (M).
June 2, 2013 submittal--2010 SO2 NAAQS:
    (A), (C), (D)(i)(II) element 3, (D)(ii), (E), (F), (G), (H), (J),
     (K), (L) and (M).
January 31, 2013 submittal--2008 Ozone NAAQS:
    (A), (B), (C), (D)(i)(II) element 3, (D)(ii), (E), (F), (G), (H),
     (J), (K), (L) and (M).
January 31, 2013 submittal--2010 NO2 NAAQS:
    (A), (C), (D)(i)(II) element 3, (D)(ii), (E), (F), (G), (H), (J),
     (K), (L) and (M).
December 4, 2015 submittal--2012 PM2.5 NAAQS:
    (A), (C), (D)(i)(II) element 3, (D)(ii), (E), (F), (G), (H), (J),
     (K), (L) and (M).
March 14, 2016 submittal--New Rules to UAC Rules, CAA Section 128
    R307-104-1, R307-104-2 and R307-104-3.
------------------------------------------------------------------------


Table 2--List of Utah Infrastructure Elements and Revisions That the EPA
                    Is Proposing To Take No Action On
------------------------------------------------------------------------
   Proposed for no action  (Revision to be made in separate rulemaking
                                 action)
-------------------------------------------------------------------------
January 19, 2012 submittal--2008 Pb NAAQS:
    (B), (D)(i)(I) elements 1 and 2, (D)(i)(II) element 4.
January 31, 2013 submittal--2008 Ozone NAAQS:
    (D)(i)(I) elements 1 and 2, (D)(i)(II) element 4.
January 31, 2013 submittal--2010 NO2 NAAQS:
    (B), (D)(i)(I) elements 1 and 2, (D)(i)(II) element 4.
June 2, 2013 submittal--2010 SO2 NAAQS:
    (B), (D)(i)(I) elements 1 and 2, (D)(i)(II) element 4.
December 22, 2015 submittal--2012 PM2.5 NAAQS:
    (B), (D)(i)(I) elements 1 and 2, (D)(i)(II) element 4.
------------------------------------------------------------------------

VIII. Incorporation by Reference

    In this rule, the EPA is proposing to include in a final the EPA 
rule regulatory text that includes incorporation by reference. In 
accordance with requirements of 1 CFR 51.5, the EPA is proposing to 
incorporate by reference the Utah Administrative Code Rules pertaining 
to state board requirements VI.6. b. Sub-element (ii): State boards, of 
this preamble. The EPA has made, and will continue to make, these 
documents generally available electronically through 
www.regulations.gov and/or in hard copy at the appropriate EPA office 
(see the ADDRESSES section of this preamble for more information).

IX. Statutory and Executive Orders Review

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
federal regulations (42 U.S.C. 7410(k), 40 CFR 52.02(a)). Thus, in 
reviewing SIP submissions, the EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
proposed action merely approves some state law as meeting federal 
requirements and disapproves other state law because it does not meet 
federal requirements; this proposed action does not impose additional 
requirements beyond those imposed by state law. For that reason, this 
proposed action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, Oct. 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have federalism implications as specified in 
Executive Order 13132 (64 FR 43255, Aug. 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and,
     Does not provide the EPA with the discretionary authority 
to address, as appropriate, disproportionate human health or 
environmental effects, using practicable and legally permissible 
methods, under Executive Order 12898 (59 FR 7629, Feb. 16, 1994).
    The SIP is not approved to apply on any Indian reservation land or 
in any other area where the EPA or an Indian tribe has demonstrated 
that a tribe has jurisdiction. In those areas of Indian country, the 
rule does not have tribal implications and will not impose substantial 
direct costs on tribal governments or preempt tribal law as specified 
by Executive Order 13175 (65 FR 67249, November 9, 2000).

[[Page 24536]]

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Greenhouse 
gases, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and 
recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

    Authority: 42 U.S.C. 7401 et seq.

    Dated: April 13, 2016.
Debra H. Thomas,
Acting Regional Administrator, Region 8.
[FR Doc. 2016-09586 Filed 4-25-16; 8:45 am]
 BILLING CODE 6560-50-P


